COURT FILE NO.: DC-04-010014-00

DATE: 20050121

SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT – ONTARIO

RE: THE CORPORATION OF THE COUNTY OF GREY, Appellant and JAMES ALAN MUNRO Respondent

BEFORE: LANE, MOLLOY and DONOHUE JJ.

COUNSEL: Erroll Treslan, for the Appellant Selwyn Hicks and Barbara Hicks, for the Respondent

HEARD: January 20, 2005

E N D O R S E M E N T

[1] This is an appeal from the costs order made by Thompson J. on September 8, 2004, requiring the County of Grey to pay costs of $2,000 to Mr. Munro. This sum was his legal costs to extricate himself from the situation created by the Family Responsibility Office (FRO) threatening to cancel his driver’s licence for arrears of support payments. FRO had received collection instructions from Grey County, based on an assignment of support payments by Mr. Munro’s ex-wife.

[2] Unknown to the County or FRO, the support obligation had ceased to exist 18 months earlier, by a settlement agreement. Despite this fact, the former Mrs. Munro certified to the County in the assignment that the support order was in full force and effect.

[3] The County launched an appeal without seeking leave, although it was concerned with costs alone. It was submitted by counsel for the County that leave was not required, where the order was made without jurisdiction. In the alternative, he had brought a motion for leave.

[4] Did the judge have jurisdiction to make the order for costs against Grey County?

A. Was the County the real litigant? If the answer to this question is yes, then there is authority for the making of a costs order against a non-party who is the real litigant, and has put forward a man of straw to avoid liability for costs: Rockwell Developments v. Newtonbrook Plaza, [1972] 3 O.R. 199 (C.A.) There is no evidence to show the County is such a person.

B. Was the County a party? The County filed a Notice of Financial Interest based on the assignment to it of the support order. Under Rule 15(5) of the Family Law Rules, an assignee who files such a notice becomes a respondent. The County was, therefore, a party and so exposed, in a proper case, to an order for costs.

C. Is a case conference a proceeding where such an order may be made? Under Rule 17 of the Family Law Rules, only certain orders may be made at a case conference. One such situation is an unopposed order. In one sense, the order was unopposed – no-one present opposed it, but counsel submits the County had no notice that costs would be asked against it. Nevertheless, the County was served, filed the Notice, and knew that costs would be an issue. Further, the judge may make any order if notice has been given: Rule 17(8)(b). In our view, these Rules provide the necessary jurisdiction to make the order for costs.

[5] Accordingly, we are of the view that there was jurisdiction to make the order. Therefore, leave is required, as the appeal is as to costs only.

Extension of Time for Leave to Appeal

[6] We are satisfied that the extension of time to apply for leave ought to be granted. The appeal was launched promptly, and as soon as the issue of leave was raised in the respondent’s factum, the motion for leave was launched. In our view, the interests of justice require that the extension be granted in the circumstances of this case, including a genuine doubt as to the jurisdiction of the judge to make the order, and the implications of the order. There are strong grounds to question the order in the circumstances.

Leave to Appeal

[7] There are, as noted, strong grounds to believe that a review of the order at an appellate level is desirable, so that this issue may be resolved. It affects a lot of cases, since the filing of such Notices by social agencies is common.

[8] Therefore, leave to appeal is granted.

Merits of the Appeal

[9] The appellant submits the judge had no basis to award costs against the County. The County did not intervene, except to give notice of its interest as assignee. It did not know when it sent the assignment to FRO that the wife had misled it. It did learn of that allegation when served, but that would not be expected to lead to a costs order against it. Nor was there any evidence that the respondent or his counsel approached Grey to withdraw the assignment from FRO.

[10] In our view, it is not realistic to expect the County or similar family support providers to attend every motion regarding support. We do not accept that the County’s mere failure to appear on this motion is a special circumstance to be considered as part of the support of an order for costs against the County. Nor was the County at fault for sending the assignment to FRO. When it did so, it had no reason to doubt the validity of the assignment, and when it was served with this motion and appeal, it was not unreasonable to await events, particularly when it was not contacted for an informal resolution.

[11] The appeal is allowed, and the costs order is set aside against the County. Although FRO filed a Notice of Appeal, the appeal was not perfected, and hence was not before us, and the costs order against it is not affected by this decision.

[12] There will be no costs of the appeal.

Lane J.

Molloy J.

Donohue J.

Date: January 21, 2005